The Origin & Evolution of the Partial Veto Power

In the April general election, a referendum will give Wisconsin citizens an opportunity to limit the governor’s partial veto power. Here’s a look at the proposed amendment and how it compares to the origin and evolution of partial veto power.

The Origin and Evolution of Partial Veto Power

In the April general election, a referendum will give Wisconsin citizens
an opportunity to limit the governor's partial veto power. Here's a look
at the proposed amendment and how it compares to the origin and
evolution of partial veto power.

he Wisconsin Constitution provides
that "appropriation bills may
be approved in whole or in part by the governor, and the part
approved shall become law." This provision was created by a
constitutional amendment in 1930 and is now considered "the most
extensive" veto
power that has been "given to any state
executive."1

Former Gov. Tommy G. Thompson has called it "a pair of
scissors"
that "allows the governor to strike out individual words and digits
as
well as sentences and paragraphs from budget bills passed by the
legislature."2 However, this
understanding of the partial veto is not what
was intended, either by the framers of the partial veto or by the
voters who ratified it.

The result of the current understanding is a profound
contradiction. On one hand, the Wisconsin Constitution
makes clear that legislation must be authorized and enacted by the
legislature in order to be a legitimate
exercise of governmental power. It provides that "the legislative
power shall
be vested in a senate and assembly." It prescribes an enacting
clause for "all
laws of the state," which clause declares that "the people of
the state of
Wisconsin, represented in senate and assembly, do enact as
follows." And it limits the
role of the executive to the "approval" or
"rejection" of legislation that has
passed each house of the legislature in identical
form.3

On the other hand, the partial veto has evolved into a
unilateral
executive power to create "law[s] that the legislature did not
consider, let alone
enact ."4 The legislature has
effectively been reduced from a coequal branch
of state government, with the power to authorize "all laws of the
state," to a
body that is merely advisory, at least in circumstances in which a
governor finds
it possible to stitch together a law that the legislature did not
approve from
the remnants of a vetoed appropriation bill.

The Legislature Adopts an Item Veto Amendment

A constitutional amendment must be passed by two successive
legislatures,
and then ratified by voters in a referendum, before it may become part
of the
Wisconsin Constitution.5 State senator
William Titus began the process that
created the partial veto power on Feb. 25, 1927, by introducing his
proposal for a
constitutional amendment as Senate Joint Resolution 35.

Titus said the proposed amendment would allow "future
governors to veto
separate items of an appropriation
bill."6Thirty-seven other states had
already adopted the item veto concept.7

Frederick B. Wade, U.W. 1972, maintains a law practice in
Madison, with an emphasis on corporate governance issues.

It was understood, in 1927, that an "item" consists of
"any part of a
bill [making appropriations] which is sufficiently distinct that it may
be
separated without serious damage to the essential force of the
residue."8 The Virginia Constitution
specified, for example, that the governor's veto of a
"particular item or items shall not affect the item or items
to which he does not
object."9

It appears that the proposed amendment was drafted by Edwin
Witte, the
chief of the Legislative Reference Library. Witte sent the draft
amendment to Titus
on Feb. 18, 1927, and called it a proposal to "allow the Governor
to veto items
in appropriation bills." He did not comment on the fact that the
text did not
use the word "item," and instead, permitted appropriation
bills to "be approved
in whole or in part."10

The proposed amendment passed the senate on March 17, and was
adopted by
the assembly on May 5, 1927. It was not controversial.

In February 1929, after Titus retired from the legislature,
state
senator Thomas Duncan asked Witte to prepare the "amendment passed
in 1927 to allow
the governor to veto items," so that he could introduce it for
consideration
during the 1929 session.11 Duncan
introduced the measure as Senate Joint Resolution
40 on Feb. 14, 1929. The measure won senate approval on March 7 and was
adopted
by the assembly on April 19, 1929.

Edwin Witte Advocates Adoption of an Item Veto

In September 1930, before the November ratification vote, Witte wrote
a
"Brief in Support of the Proposed Amendment to the Constitution to
Allow the
Governor to Veto Items in Appropriation
Bills."12 The brief notes that during
the
1929 session, the legislature had adopted "an executive budget
plan," which
required governors to incorporate all "budget estimates" into
"a single
appropriation bill." It adds that "the item veto is absolutely
indispensable to operation
of the [new] Wisconsin budget plan," because without it, "the
legislature can
increase the items" in the executive budget "and add new
ones."

Although governors could veto a budget bill in its entirety, the
brief
indicates that they would hesitate to do so, even if they had strong
objections
to one or more items, because "the state government must go
on." Witte
predicted that, without an item veto, governors would be more likely
"to sign the
[budget] bill and then blame the legislature for the large
appropriations."

The Witte brief states that the proposed amendment would permit
governors
"to veto items in appropriation bills
entirely, and then send them back to the legislature which may
pass the same [entire items] over the veto"
(emphasis added). It would give a governor the "power
to block any appropriation which he deems unwise and which
two-thirds of the members of both houses do not
think ought to pass over his objections" (emphasis added).

The brief uses the words item and
items a total of 19 times. It makes no mention of the word
part. Under these circumstances, it appears that
Witte viewed the terms part and item as interchangeable
synonyms for expressing
the item veto concept.13

The Voters Ratify the Item Veto

Sen. Duncan opened the campaign for ratification of the amendment in
Madison
on Oct. 13, 1930. He told his audience that the proposed amendment would
give
governors the power "to kill separate
items" of an appropriation
bill.14 The intent, he said, "is
merely giving back to the governor the power we took
away from him when we passed the [executive] budget system at the 1929
session."15

Duncan distributed a press release as part of his campaign. In
it, he
declared that the amendment would permit the governor to veto
"single items in an appropriations bill without vetoing the
entire
bill."16

Among the state newspapers that endorsed the change, the
Sheboygan
Pressechoed Duncan's prediction that the amendment "would
enable the governor to
veto single items in an appropriations bill without vetoing the entire
bill."17 TheMilwaukee
Leaderendorsed the amendment on the ground that "the veto
of an
entire appropriation bill in order to get at one or two items is an
impractical way of going about legislative
business."18 And the Racine
Times-Call,
published by state senator (and future governor) Walter Goodland,
supported
ratification because it would "give the governor the power to veto
that portion of the
appropriation [bill] he believes to be bad and yet
allow the balance to
stand."19

According to the 1931-1932 Blue
Book, the amendment to permit the governors "to veto single
items in appropriation bills" was ratified on Nov. 4, 1930,
with 252,655 state residents voting in favor and 153,703 voting
against.20 There is no evidence that anyone
anticipated that the partial veto might someday be
understood as an executive power to create laws that the legislature had
not
approved.21

Judicial Evolution of the Partial Veto

In 1935, the Wisconsin Supreme Court adopted a two-part test of
severability
as the test for determining the validity of a partial veto. The court
declared
that it would give effect to the unvetoed part of a law as long as: 1)
"the
part upheld constitutes a complete law in some reasonable
aspect"; and 2) "it
appears from the act itself that the legislature intended it to be
effective,"
so that the "part upheld" would be carried into effect
consistent with the
intention of the legislature which enacted
it.22

The veto power did not become "the most extensive" in
the nation until
1978, when the court declared that the test of severability is
"simply that what
remains be a complete and workable law" and thereby changed the
content of
the test it had adopted in 1935.23 Although
the court did not acknowledge that
it was changing the test, and did not explain any reasons for making the
change, the one-prong restatement of the test eliminated the need to
consider
whether the part upheld could stand consistent with the intention of the
legislature that had enacted the bill. The court held, on the basis of
the revised
test, that governors may remove provisos, conditions, and other parts of
an
appropriation bill "so long as the net result of the partial veto
is a complete,
entire and workable bill which the legislature itself
could have passed in the first
instance."24

Another important step in the evolution of the veto power was
taken in
1988, when the court held that governors may veto individual
"sections,
subsections, paragraphs, sentences, words, parts of words, letters, and
digits in an
appropriation bill as long as what remains is a complete and workable
law."25 The court based this
conclusion "on the language of our constitution giving
the governor of this state the authority to veto
parts of an appropriation bill, as distinguished from the
authority to veto
items ."26

In support of its decision, the court cited the dictionary
definition of
the word part as "one of the portions, equal or unequal,
into which anything
is divided, or regarded as
divided."27 However, the majority
opinion did not
explain why the court had determined that an appropriation bill ought to
be
"regarded as divided" into parts as small as individual
"words, parts of
words, letters, and digits," instead of entire "items" in
accord with the intent of
the framers of the 1930 amendment and the unanimous understanding of
other
states that have adopted part or item vetoes.

Executive Lawmaking Since 1988

The judicial transformation of the partial veto power has permitted
governors
to spend or transfer more than $2.7 billion of public funds since 1988
without
the approval of the legislature. For example, in 1991, Gov. Tommy
Thompson
deleted parts of a single sentence to create an annual appropriation of
$319,305,000
for a school tax credit that led to the spending of more than $1.2
billion that
the legislature did not authorize over a period of four
years.28 In 2003, Gov. Jim Doyle deleted
selected parts of two sentences to create an annual
appropriation of $703,102,200 for distribution to municipalities and
used additional vetoes
of a single sentence to increase the state's bonding authority for major
highway projects from $140 million to $1
billion.29 In 2005, Gov. Doyle stitched
together two mandates, which the legislature did not approve, that
called for
the transfer of $427,000,000 from the transportation fund to the general
fund
and for the "transfer [of] $330,000,000" from general
fund accounts "to any
appropriation [for the Department of Public Instruction] under section
20.255 of
the statutes."30

Governors also have used the partial veto to impose tax
increases that
the legislature did not approve. In 1999, for example, Gov. Thompson
vetoed parts
of a single sentence to effect a repeal of the property tax rent credit
and
thereby required taxpayers to pay an additional $234 million in income
taxes that
the legislature did not authorize the state to
collect.31 In 1991, he used partial vetoes
to increase the amount of sales taxes that retailers were required to
pay by up to $200 per year by unilaterally reducing the amount they
could deduct
for administration expenses.32 He also used
a 1991 veto to put higher parimutuel
tax rates into effect in 1993, despite the fact that the legislature did
not
authorize those rates to take effect until
1995.33

The foregoing examples are just the tip of an enormous iceberg.
Wisconsin governors have used partial vetoes to create hundreds of laws
that the
legislature did not approve.

Legislative Acquiescence and Constitutional Amendments

As noted above, the Wisconsin Constitution provides that
"appropriation
bills may be approved in whole or in part." But
to approve means to "judge and find
acceptable," and that is not what governors do when they
delete words,
digits, and other parts for the express purpose of creating a law that
the
legislature did not approve.34

The legislature has acquiesced in this massive transfer of power
to the
executive, in part because a governor's creation of legislation may be
sustained with the acquiescence of just "one third plus one member
of one house of
the legislature."35 There has not been
a successful override of a partial veto
since 1985.36

The legislature did pass a constitutional amendment to prevent
governors
from creating "new word[s]," which was ratified in
1990,37 and has passed a second
constitutional amendment that will be submitted for ratification in
April
2008, which would prohibit governors from creating "a new sentence
by combining
parts of 2 or more
sentences ."38 However, neither
amendment has addressed the
fundamental contradiction that exists between the Wisconsin
Constitution's
command that "the legislative power shall be vested in a senate and
assembly," and
the current understanding that governors may use partial vetoes to
create laws
that the legislature did not approve.

If the pending amendment is ratified, as appears likely,
governors still
will have the power to make laws that the legislature did not approve,
either
by vetoing parts of a single sentence or by vetoing one or more
sentences in
their entirety. And, to the extent governors make such vetoes, the
enacting clause
of each bill involved will be rendered false, because what follows the
enacting clause will not be what the legislature enacted.

Accordingly, assuming that the pending amendment is ratified,
governors
still will be allowed to treat the provisions of an appropriation bill
as merely
advisory. The constitution's allocation of the legislative power will
effectively provide that "the legislative power shall be vested in
a senate and
assembly," except that governors may exercise the legislative power
in order to make
laws that the legislature did not approve by stitching together remnants
of a
vetoed appropriation bill, as long as they do "not create a new
word by rejecting
individual letters in words" and do "not create a new
sentence by combining
parts of 2 or more sentences."

What Should be Done

Neither the framers of the 1930 amendment, nor the voters who
ratified it,
had any intention of creating a unilateral executive power to create
laws that
the legislature did not approve. Instead, they sought to ensure that
each
separate item that might become law as part of an appropriation bill
would have the
approval of the governor, in addition to that of the senate and
the assembly.

That intent still could be realized. If governors were required
to veto
separate items and appropriations in their entirety, each item or
appropriation
that remains would have the concurrent approval of the senate, the
assembly,
and the governor. Such an amendment could be substituted for the
1990 and 2008
amendments and provide that, "In approving an appropriation bill in
part, the
governor shall approve separate items or appropriations in their
entirety."

Governors would retain the power to veto separate items and
appropriations that the legislature may include in an appropriation
bill. But they would
no longer have the power to create any law that the legislature did not
approve.

Endnotes

1Wis. Const., art. V, § 10. The
"extensive" scope of the veto power
is noted in Robert L. Maddex, State Constitutions of the United
States 435 (2006), and Tommy G. Thompson,Power to the People
4 (1996).

2Thompson, supra note 1, at 48,
129. Thompson notes that, "Unless the
legislature overrides [such] a veto by a two-thirds vote of each
house, the governor's changes become law."

3See Wis. Const., art. IV,
§§ 1, 17, art. V, § 10. The concept is one
of authorization by the legislature. For example, an appropriation
is defined as "the setting aside from the public revenue of a
certain
sum of money for a specified object, in such manner that the
executive officers of the government are
authorized to use that money, and no more,
for that object, and no other" (emphasis added). Flynn v.
Department of
Administration, 216 Wis. 2d 520, 556, 576 N.W. 2d 245 (1998).

7Wis. St. J. (Oct. 13, 1930); for the
development of the "item"
veto in other states, see Chester James Antieau,The Executive
Veto 55 (1988);Item Veto: State Experience and Its Application to
the Federal
Situation, House Committee on Rules, 99th Cong., 2d Sess.
3-4, 200 (1986)

13There is no evidence that Witte
attached any significance to
the difference in terminology. In 1937, he wrote that Wisconsin
governors had a "power of `item veto'" that permits
them to draw "a line
through items" that consist of
"clearly distinguishable parts of the [appropriation]
bill"
(emphasis added). "Statute Lawmaking in
Wisconsin,"1937-1938 State of Wisconsin Blue
Book 151.

14Wis. St. J. (Oct. 13, 1930).

15Cap. Times(Oct. 14, 1930)
(emphasis added). For a description
of Duncan's campaign for ratification, see
Winter Everett, Around the
Statehouse, Wis. St. J. (Nov. 14, 1930).

16Forward: The Bulletin of the
Wisconsin League of Women Voters (Oct. 1930) (emphasis added).

22Henry, 218 at Wis.
302, 316, 260 N.W. 486 (1935). The prior history of
the test is stated in Broughton v.
Zimmerman, 261 Wis. 398, 408-10, 52 N.W.2d
903 (1952). Although the Henry court adopted a test that called
for
deference to the intent of the legislature, it upheld vetoes of parts of
a work relief bill on the questionable premise that the deleted
parts were "merely incidental" to an overriding intent to
provide
"immediate relief."

36The legislature overrode two partial
vetoes of Gov. Tony Earl
with respect to "Items" 2-G and 4-U of 1985 Wis. Act 29. It
is an
established practice of governors to classify partial vetoes according
to "items" that may include one or more provisions dealing
with a
single subject.